ACIT 18(1), MUMBAI V. SUNIL BANKELAL GUPTA, MUMBAI

ITA 7142/MUM/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 1446 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-12-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 26-10-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 05-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B S BIST

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E, MUMBAI BEFORE SHRI P.K. BANSAL, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO. 7142/MUM/2013 : (A.Y : 2009 - 10) ACIT - 18(1), MUMBAI ( APPELLANT ) VS. SHRI SUNIL BANKELAL GUPTA 3/4, SHREE RAM MILL CHAWL, P.B. MARG, WORLI, MUMBAI 400 013 (RESPONDENT) PAN : AEIPG3733J ASSESSEE BY : NONE REVENUE BY : SHRI B.S. BIST DATE OF HEARING : 19/12/2016 DATE OF PRONOUNCEMENT : 23 /12/2016 O R D E R PER P.K. BANSAL , AM : THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAINST THE ORDER OF CIT(A) - 29, MUMBAI DATED 23.9.2013. NONE APPEARED ON BEHALF OF THE ASSESSEE EVEN THOUGH NOTICE WAS DULY SENT. WE, THEREFORE, DECIDED TO DISPOSE OF THE APPEAL AFTER HEARING THE LD. DR. 2. WE HEARD THE LD. DR AND WENT THROUGH THE SUBMISSIONS MADE BY HIM. WE NOTED THAT THE ONLY ISSUE INVOLVED IN THIS APPEAL RELATES TO DELETION OF PENALTY IMPOSED BY THE ASSESSING OFFICER AMOUNTING TO 2 SHRI SUNIL BANKELAL GUPTA ITA NO. 7142/MUM/2013 RS.10,42,630/ - . THE FACTS IN THIS CASE ARE THAT THE ASSESS EE FILED A RETURN DECLARING AN INCOME OF RS.2,65,37,307/ - . THE ASSESSING OFFICER REJECTED THE BOOKS OF ACCOUNT U/S 145(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) AS ASSESSEE COULD NOT PRODUCE THE BOOKS OF ACCOUNT AND ESTIMATED THE GROSS PROFIT @ 8% OF THE GROSS RECEIPTS. THE ASSESSMENT WAS COMPLETED AT AN INCOME OF RS.2,93,14,001/ - AS AGAINST RETURNED INCOME OF RS.2,65,37,307/ - . THE ASSESSING OFFICER, THEREFORE, AFTER GIVING OPPORTUNITY TO THE ASSESSEE, LEVIED PENALTY U/S 271(1)(C) OF THE ACT A T RS.10,42,630/ - BEING TAX SOUGHT TO BE EVADED @ 100% OF THE ADDITION MADE DUE TO APPLICATION OF THE DIFFERENTIAL RATE IN GROSS PROFIT. WHEN THE MATTER WENT BEFORE CIT(A), WE NOTED THAT THE CIT(A) DELETED THE PENALTY LEVIED U/S 271(1)(C) OF THE ACT. IT I S A SETTLED LAW THAT WHERE THE INCOME HAS BEEN ESTIMATED AND ADDITION HAS BEEN MADE OR SUSTAINED ON THE BASIS OF ESTIMATION OF INCOME, IT CANNOT BE SAID THAT ASSESSEE HAS CONCEALED THE PARTICULARS OF INCOME OR FILED INACCURATE PARTICULARS OF INCOME. THE C IT(A), IN OUR VIEW, HAS RIGHTLY RELIED ON THE ORDER OF HON'BLE MADRAS HIGH COURT IN THE CASE OF CIT VS. SMT. K. MEENAKSHI KUTTY, 258 ITR 494 (MAD) IN WHICH IT HAS BEEN HELD THAT NO PENALTY U/S 271(1)(C) OF THE ACT COULD BE LEVIED ON ACCOUNT OF ESTIMATE MAD E BY THE ASSESSING OFFICER BEING HIGHER THAN THE ESTIMATE OF INCOME OF ASSESSEE. ESTIMATE, IN OUR VIEW, IS AN ESTIMATE. IT CANNOT TAKE PLACE OF ACTUALITY. NO COGENT MATERIAL OR EVIDENCE WAS BROUGHT TO OUR KNOWLEDGE WHICH MAY PROVE THAT THE ASSESSEE HAS ACTUALLY EARNED THE INCOME @ 8% OF THE GROSS RECEIPTS. WE, THEREFORE, CONFIRM THE ORDER OF CIT(A) DELETING THE PENALTY LEVIED ON THE ASSESSEE. 3 SHRI SUNIL BANKELAL GUPTA ITA NO. 7142/MUM/2013 3. IN THE RESULT, APPEAL FILED BY THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 2 3 R D DECEMBER, 2016. SD/ - SD/ - (PAWAN SINGH) JUDICIAL MEMBER ( P.K. BANSAL ) ACCOUNTANT MEMBER MUMBAI, DATE : 2 3 R D DECEMBER, 2016 * SSL * COPY TO : 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT(A) CONCERNED 4) THE CIT CONCERNED 5) THE D.R, E BENCH, MUMBAI 6) GUARD FILE BY ORDER DY./ASSTT. REGISTRAR I.T.A.T, MUMBAI